Asda’s dismissal of diabetic over incontinence incident ruled unfair

Asda acted unfairly when it dismissed a lorry driver with diabetes after he had urinated in a delivery yard due to urge incontinence.

That was the decision of the Employment Tribunal in an unusual case relating to disability discrimination.

The driver suffered from type 2 diabetes. One of the symptoms of that condition was urge incontinence (a sudden and urgent need to empty the bladder). On arrival at one of Asda's depots, the driver had suffered a sudden need to urinate.

Fearing that he would not reach the toilet in time, he used the delivery yard. He was dismissed for gross misconduct and breach of health and safety policies and regulations.

Asda did not specify what the policy and regulations were and did not seek any medical evidence.

The driver appealed and produced medical evidence that supported his case, but Asda upheld his dismissal.

The Employment Tribunal concluded that Asda's investigation was inadequate and was not within the band of reasonable responses. It held that the dismissal was unfavourable treatment arising from the driver's disability within the terms of the Equality Act 2010.

It ordered the Asda to reinstate him and awarded him compensation.

Asda appealed, saying the tribunal's conclusions could not stand in the light of CCTV footage showing that the driver had urinated on pallets of trays used for the delivery of food.

The Employment Appeal Tribunal also ruled in favour of the driver. It held that the CCTV was inconclusive, yet Asda leapt to conclusions about unnamed and unspecified health and safety regulations. The operative cause of the driver’s dismissal was disability rather than misconduct.

The lack of any reasonable investigation was a critical issue in the tribunal's ultimate decision that the dismissal was unfair.